Citation Nr: 21073631 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-29 606 DATE: December 9, 2021 ORDER Service connection for cervical spine disability, to include degenerative arthritis, is denied. REMANDED Entitlement to service connection for respiratory disability is remanded. FINDING OF FACT The Veteran's cervical spine disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for cervical spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1987 to February 1993. The Veteran died in March 2021 from cardiopulmonary arrest due to acute respiratory failure with hypoxia, necrotizing pneumonia, and the Coronavirus (COVID-19). See Death Certificate (March 2021). A September 2021 rating decision granted service connection for the Veteran's cause of death. The appellant is his surviving spouse, who has been substituted in this appeal. See Correspondence (May 2021). This appeal comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In December 2019, and in December 2020, the Board remanded the claims for further development. Entitlement to service connection for cervical spine disability, to include degenerative arthritis. As noted above, the Board last remanded the claim in December 2020 for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Turning to the appeal, the Veteran, and his then-representative, contended that his cervical spine disability stemmed from service. Specifically, the Veteran argued that the in-service injury that caused his service-connected lumbar spine disability also caused his current cervical spine disability. See Hearing Transcript at 13, 17 (March 2019) (revealing testimony from the Veteran that he relates his cervical spine disability to the injury that caused his service-connected lumbar spine disability). Next, the record does not show that the appellant, or her representative, has provided any additional contentions or arguments other than those raised by the Veteran and his then-representative (who is the same as now representing the appellant). The Board concludes that the preponderance of the evidence is against finding that the Veteran had any cervical spine disorder shown as chronic in service; or that manifested to a compensable degree within the applicable presumptive period; or that was noted in service with continuity of symptomatology thereafter; or that any he had any cervical spine disability otherwise etiologically related to an in-service injury or disease. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Turning to the merits of the claim, service treatment records (STRs) reflect complaints of back pain. In this regard, STR, dated in November 1992, reflects that the Veteran reported short-term, mild, back pain. Separation examination report, dated in December 1992, shows that the Veteran was evaluated as having a clinically normal spine. The report of examination additionally shows that the summary of defects and diagnoses section is absent for any acute or chronic cervical spine defect, disorder, or disability. In the corresponding report of medical history, the Veteran denied having, or ever having, arthritis or rheumatism; he did however report a history of recurrent back pain. The clinician, in elaborating, annotated recurrent mechanical low back pain, not considered disabling (NCD). With regard to the neck or cervical spine, the report of medical history is entirely absent for any complaint, treatment, or signs or symptoms of any acute or chronic cervical spine defect, disorder, or disability. Indeed, the report of medical history, in this regard, reveals that the Veteran reported numerous ailments, but nothing related to the neck or cervical spine. Next, STR, dated in February 1993, reveals that the Veteran reported hurting his back "some years ago," but did not seek treatment. On examination, the Veteran was found to have no point tenderness along the spine or spasms. He was additionally found to be able to bend over fully at waist and touch his toes without pain. Post-service medical records show that the Veteran was hospitalized in 2006 after an above-ground pool accident. In this regard, private treatment record, dated in August 2007, reveals that the Veteran reported neck pain that radiated down to the right shoulder and left upper arm and forearm. The treatment record also shows that the Veteran reported having neck pain "like this since in the Navy several years ago," however, he was unsure what was causing it to worsen. Magnetic resonance imaging report, dated in August 2007, reflects a finding for mild degenerative arthritis for the cervical spine. Private treatment record, dated in August 2006, reflects that the Veteran reported low back pain and lower neck pain. With regard to the neck pain, the treatment record shows that the Veteran attributed it to a "jammed neck playing football at age 12." The treatment record also shows that the Veteran stated that the neck pain had its onset within the last five to 10 years. Prior to 2006, the Veteran's treatment records are negative for complaints, treatments, or signs or symptoms of any acute or chronic cervical spine defect, disorder, or disability. For instance, private treatment record, dated in August 2005, reveals that the Veteran established Dr. Glasgow as his primary care physician (PCP); and a review of the August 2005 treatment record shows that the Veteran reported symptoms of chest pain, intermittent low back pain, and was positive for feeling nervous. The treatment record additionally shows that a review of the other systems, however, were negative. With regard to his past medical history, the Veteran reported a history of asthma, vasomotor rhinitis, and seborrheic dermatitis. The treatment record, lastly, reveals that the Veteran was assessed with hypoglucemia, chest pain, and allergies. Likewise, private treatment record, dated in September 2005, shows that the Veteran reported pain in his shoulders, lower back, hips, and knees. The treatment record, nevertheless, is absent for complaints related to the cervical spine or neck area. VA examination report, dated in July 2020, reflects that the Veteran was diagnosed with degenerative arthritis of the cervical spine and bilateral upper extremity radiculopathy. The report shows that, at this time, the Veteran related his neck pain to carrying heavy equipment while in service. He additionally reported constant neck pain, limited range of motion, pain from the base of the neck to bilateral shoulder blade, and bilateral hand numbness. VA medical opinion, dated in September 2021, reflects the conclusion that the Veteran's cervical spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the VA medical opinion of high probative value. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and the medical conclusion reached. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a medical professional provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the Board finds the VA medical opinion of high probative value for the following reasons: The medical opinion is based on sufficient facts and data (e.g., the Veteran's lay statements, in-service and post-service medical records); the medical opinion is the product of reliable principles and methods; and the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez, 22 Vet. App. at 302 (citing to Federal Rules of Evidence on expert witnesses). Further, the VA medical opinion contains clear conclusions with supporting data, and also a reasoned medical explanation connecting the two. Id. at 301. The clinician, in forming his conclusions, considered other factors that may have caused or contributed to the Veteran's cervical spine disability, to include the natural aging process due to normal wear and tear over his lifetime. This is exemplified by the comprehensiveness of the medical opinion, detailing the Veteran's contention that his disability stems from service, to include from the alleged in-service injury. In this regard, the opinion considered the Veteran's in-service reports of recurrent low back pain and noted that it was "highly unlikely a significant neck condition would've gone unnoted or unreported." The opinion, moreover, fully explained why the clinician disagreed with the Veteran's theory of causation and provided a discussion of the relevant and significant medical history, clinical findings, medical knowledge and literature that support the negative medical opinion and conclusion. For example, the VA medical opinion cites and discusses relevant medical literature finding that "[a]s many as 30 [percent] of men over the age of 30 will exhibit degenerative spine disease, the prevalence rising significantly per decade thereafter." In this regard, the opinion rationalized that, with consideration of the medical literature, the Veteran "was age-appropriate at the time of diagnosis" for degenerative arthritis of the cervical spine. Next, in finding no evidence of an in-service cervical spine disorder or disability, the opinion noted that the Veteran's separation examination "was negative for neck conditions" and that in-service examinations were "notably thorough and include[d] a history, physical and [V]eteran-answered [report of medical history], which did note the low back condition but not a neck component." In consideration of the above, the VA medical opinion shows that the clinician found the Veteran's contention that his disability stemmed from service of diminished or low persuasion. The Board, thus, finds the VA medical opinion of high probative value as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. The Veteran is competent to report his symptoms associated with his disability, to include pain. However, the Board finds that he is not competent to opine on the etiology of his symptoms given that the disability was not shown as chronic in service and because he lacks the requisite medical expertise to formulate a medical opinion on whether his disability is related to an in-service injury or disease. In sum, this is a complex medical determination beyond the ken layperson that cannot be answered based on observation or analysis of a layperson. Indeed, this is an intricate matter that require medical education and knowledge, beyond the ken layperson, regarding the unseen and complex processes of the development of a musculoskeletal disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran's statements of record, to include his testimony, cannot be accepted as competent evidence sufficient to establish service connection, and, thus, his medical opinion in this matter has no probative value. In addition, to the extent that the Veteran, or appellant, argues that any chronic cervical spine disability had its onset in service, the Board finds the statements less than credible. Moreover, to the extent that the Veteran, or appellant, maintains that any arthritis of the cervical spine manifested to a compensable degree within the applicable presumptive period, or that he experienced continuity of symptomatology, the Board also finds those statements less than credible as they are inconsistent with the other evidence of record. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant's statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain, and demeanor of the witness). In this instance, the record indicates that at service separation, the Veteran was found to have a clinically normal spine. Further, as noted above, private treatment record, dated in September 2005, is absent for cervical spine symptomology, to include signs or symptoms of degenerative arthritis. The Board observes that this treatment record is of significant value because the Veteran was establishing PCP care. In this regard, in establishing PCP care, the provider becomes familiar with a patient's past medical history, current health issues, and family history. Of note, the treatment record is absent of any reported cervical spine symptomology, to include a past history for degenerative arthritis. Additionally, the Board observes that symptoms for degenerative arthritis would be readily discernible to the extent that on physical examination the examiner would notate such findings on a report. See C&P Exam (September 2021). The record, further, shows an onset of cervical spine symptomology, to include pain, as related to a post-service injury. See Medical Treatment Record-Non-Government Facility (August 2007). Thus, given the above, the numerous years since service separation, and the Veteran's significant post-service medical history as relating to the cervical spine, the credibility of his statements is discounted. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) ("Credibility does not necessarily hinge on the declarant's intent. A statement may be untrue (and, thus, not credible) because of lack of knowledge, faulty memory, garbled expression, or other reasons, notwithstanding the declarant's intent to speak the truth."). Lastly, the Board takes notice of the absence of corroborating evidence and the Veteran's strong financial incentive to misstate. An absence of corroborating evidence and personal interest may factor into the Board's credibility analysis, so long as it is not the sole base for finding the Veteran not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may "weigh the absence of contemporaneous medical evidence against the lay evidence of record," but "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Caluza, 7 Vet. App. at 511 ("The credibility of a witness can be impeached by a showing of interest."); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (explaining that, although the Board "cannot ignore appellant's testimony simply because appellant is an interested party," it may take pecuniary interest into account when assessing the appellant's credibility). Here, contemporaneous medical evidence, in-service and post-service, as discussed above, go against the Veteran's assertion that any chronic cervical spine disability having its onset in service; further, the contemporaneous medical evidence of record goes against the Veteran's contention that any arthritis of the cervical spine manifested to a compensable degree within the applicable presumptive period, or that he experienced continuity of symptomatology since. Indeed, as discussed above, the record shows a manifestation of a cervical spine disability or disorder until more than a decade after service separation. For example, as noted above, one of the first manifestations of a chronic cervical spine disability came in 2006, in which the Veteran reported an onset of neck pain as stemming from a pre-service football injury. The Board observes that the record contains positive nexus medical opinions, to include medical opinions dated in June 2017, November 2017, January 2020, and June 2021. The Board finds the medical evidence inadequate to support the claim. First, the medical opinions are inadequate because the opinions were based on facts, as reported by the Veteran, that were contradicted by other facts in the record. Swann v. Brown, 5 Vet. App. 229, 233 (1993) (holding that the Board may reject a medical opinion because other facts present in the record contradict the facts provided by a veteran that formed the basis for the opinion); see also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). In this regard, the opinions rely, almost entirely, on the history as reported by the Veteran, which is contradicted by other facts in the record. Second, the opinions are inadequate because the essential rationale for the opinions is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The opinions, in this regard, do not show a reasoned medical explanation connecting the Veteran's alleged in-service injury to his current disability. See Nieves-Rodriguez, 22 Vet. App. at 301. The opinions, further, are not shown to be supported by detailed rationale that the Board can weigh against the negative evidence of record. See Prejean, 13 Vet. App. at 448-49. In this regard, the opinions do not discuss or explain evidence that contradict the Veteran's assertions. Indeed, as noted above, post-service medical records show that in 2006, the Veteran attributed his neck pain to a pre-service football injury; further, the Veteran provided an onset date of neck pain that occurred after service separation. Although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. In sum, the absence of a meaningful discussion of this evidence in the rationale does not show awareness of seemingly relevant facts and therefore casts doubt on the medical opinions' foundation and, accordingly, the Board finds the medical opinions inadequate to support the claim. Nevertheless, even if the Board was to find the medical opinions adequate, the Board gives more probative weight to the September 2021 VA medical opinion because the medical professional is shown, through the comprehensiveness and detailedness of the medical opinion, to have possessed the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is also shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation as to why the Veteran's current cervical spine disability is not related to his service. The opinion, moreover, reflects a reasoned medical explanation with consideration of lay statements, and relevant in-service and post-medical records. The opinion further is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. It is clear from the VA medical opinion that the clinician reviewed the Veteran's claims file and considered the subjective complaints of the Veteran. Also, the VA medical opinion is supported by a rationale that the Board can use to weigh against the other evidence of record. Given the above, the competent, credible, probative evidence of record does not reflect that any chronic cervical spine disability had its onset in service or is otherwise etiologically related to an in-service injury or disease. Further, the competent, credible, probative evidence of record does not show that any arthritis of the cervical spine manifested to a compensable degree within the applicable presumptive period, or that the Veteran experienced continuity of symptomatology. The Board assigns greater probative value to the Veteran's in-service and post-service medical records, which contain no objective finding for any chronic cervical spine disability until numerous years after separation from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which a veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for respiratory disability is remanded. The Veteran, and his then-representative, contended that his respiratory disability stemmed from in-service exposure to various airborne contaminants, such as gases, vapors, and particulate matters including dusts and fumes. See Hearing Transcript at 7, 8 (March 2019). To ensure that VA has met its duty to assist, the claim must be remanded for further development. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the medical evidence of record is not adequate to decide this matter. VA medical opinion, dated in June 2021, reveals the conclusion that the Veteran's respiratory disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the VA medical opinion is inadequate as the essential rationale for the opinion is not discernable. Monzingo, 26 Vet. App. at 106. Here, the opinion does not reflect any rationale in support of the conclusion. For instance, the opinion notes various medical findings, such as ionizing radiation is not an established primary etiology of asthma; asthma is a common condition which typically occurs without a specific predisposing etiology; and that there were no documented exposures or activities that would be likely to cause asthma in the STRs. The opinion, however, is absent a rationale connecting the findings to the conclusion, and the Board may not substitute its own medical rationale. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Indeed, much of the opinion reflects medical findings and conclusions, however, the opinion is absent a reasoned rationale or medical explanation supporting the reached conclusion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("a medical opinion . . . must support its conclusion with analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds, with regard to this claim, that there has not been substantial compliance with its prior remand, and therefore further remand is required. Stegall, 11 Vet. App. 268. Where VA provides an examination or obtains an opinion, it must be adequate. Barr, 21 Vet. App. 303. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran or appellant's assertions. Neither the Veteran or appellant's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's respiratory disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. NOTE (1): The opinion should reflect consideration of the pertinent evidence of record (e.g., the Veteran's documented relevant history and assertions). In other words, consider and expressly address the Veteran's theory that his disability stems from service. NOTE (2): The clinician is not required to accept the Veteran's theory that his military service caused his disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation, and provide a discussion of the relevant or significant medical history, clinical findings, medical knowledge or literature, etc., that support the negative medical opinion or conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician must opine on: Whether any respiratory disability at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease. Consider and expressly address the Veteran's contention that it stemmed from in-service exposure to various airborne contaminants, such as gases, vapors, and particulate matters including dusts and fumes. Explain. 2. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.